FEDERAL COURT OF AUSTRALIA

AOY15 v Minister for Immigration and Border Protection [2015] FCA 1348

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    This judgment deals with an appeal against a judgment of the Federal Circuit Court of Australia (“the FCCA”) delivered on 14 August 2015 (AOY15 v Minister for Immigration & Anor [2015] FCCA 2214). The FCCA heard and dismissed an application for judicial review of a decision of the Refugee Review Tribunal (“the RRT”) handed down on 24 March 2015. The decision of the RRT had considered claims by the appellant to be entitled to a protection visa on “complementary protection” grounds under s 36(2)(aa) of the Migration Act 1958 (Cth) (“the Migration Act”). An earlier decision of the RRT handed down on 26 May 2011 had decided that the appellant should not be granted a protection visa upon the grounds stated in s 36(2)(a) as being a genuine refugee within the operation of the Refugees Convention. Those earlier findings by the RRT do not arise for consideration in the present appeal.

2    It is necessary to emphasise, at the outset, that the power of the FCCA to intervene in the outcome decided by the RRT is confined to an established case of jurisdictional error. The FCCA has no role to determine the merits of a visa application. Similarly, when this Court sits on appeal from the FCCA in a matter of the present kind it does not do so in order to consider the merits of any RRT decision. This Court, like the FCCA, must confine its attention and the exercise of its power to dealing with whether a jurisdictional error has been established, together with an error in that respect by the FCCA. The factual material recounted below is given only to introduce the question of whether any jurisdictional error has been identified.

3    The appellant arrived in Australia on 19 March 2005 on a tourist visa with an Indonesian passport. He applied for a protection visa more than five years later in September 2010. The application was refused by a delegate of the Minister in January 2011, and the decision of the delegate was affirmed by the RRT in May 2011.

4    In March 2012, the “complementary protection” criteria in s 36(2)(aa) of the Migration Act were introduced. In SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235, a Full Court decided that persons who had been refused protection visas on “Convention grounds” might nevertheless apply for a protection visa on the new complementary protection grounds. The appellant lodged a further application for a protection visa dated 28 September 2013 relying on those grounds. The application was refused by a delegate of the Minister on 5 May 2014, and the appellant applied to the RRT for review of that decision.

5    It appears from the decision of the RRT that the appellant’s wife and teenage daughters had remained in Indonesia and still lived in the family home in Jakarta. Until the appellant was apprehended by the Minister’s department, he had sent them money to support them but was no longer able to do so.

6    Section 36(2)(aa) of the Migration Act, upon which the appellant’s claims depended, provides:

36    …

(2)    A criterion for a protection visa is that the applicant for the visa is:

…

(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; …

7    The concept of “significant harm” is subject to the provisions of s 36(2A) and (2B) which provide:

36    …

(2A)    A non-citizen will suffer significant harm if:

(a)    the non-citizen will be arbitrarily deprived of his or her life; or

(b)    the death penalty will be carried out on the non-citizen; or

(c)    the non-citizen will be subjected to torture; or

(d)    the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)    the non-citizen will be subjected to degrading treatment or punishment.

(2B)    However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)    it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or

(b)    the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or

(c)    the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

(Emphasis in original.)

8    The appellant’s claims that he would suffer significant harm were related to evidence which he gave to the RRT that when he lived in Indonesia he operated a used car business and was subject to threats by “gangsters” who extorted money from him. Passages in the decision of the RRT which refer to these claims include the following:

26    The [applicant] became very emotional at the hearing. The Tribunal accepts as credible the applicant’s account of the extortion demands made by a gang.

…

28    The Tribunal asked the applicant why he thought he would be at real risk of significant harm if he were to return to Indonesia. The applicant said that his claims involved his used car business in Jakarta. He said that the gangsters who extorted money from him would harm him.

29    The Tribunal asked the applicant if there were any other reasons he would suffer significant harm in Indonesia. He said that there were not. The applicant said he was afraid to return because of the thugs. He said that living in Indonesia was like living in cowboy territory. One could be robbed or lose one’s life at any time.

…

32    The applicant also wrote in his second application that almost every day there were people asking him for money to ensure the security of his business. He said that he tried to report this to the police but the results were temporary. He said that he felt burdened.

…

34    He added in the application form that there were people who asked for money every day and as a small businessman this was a burden. He said that if he did not give them money his cars would be scratched. He said that sometimes there were physical threats. He wrote that he was looking for a better life in Australia.

35    At the hearing the Tribunal asked the applicant why he had not returned to Indonesia in 2005 after his tourist visa, valid for one month, had expired. The applicant said that he had been really, really scared. This was because ‘they’ had committed violence against him. He was asked who they were and what had happened to him. The applicant said that men had brought knives and had demanded money from him. He had been told that he would be killed if he did not pay them the money they wanted.

…

41    The applicant said that this incident when he had been beaten had frightened him badly. The men had held a knife to his throat and threatened to kill him. …

…

43    The Tribunal asked the applicant what he thought would happen if he were to return to Indonesia. The applicant said that he did not know what they would do to him. He said that he was really worried. The applicant said that running a business would be difficult. The people with knives would make it impossible.

9    It appears from evidence given to the RRT that the “business” which the appellant operated was a small one with no employees which involved him buying and selling one car at a time. The RRT recorded:

37    The Tribunal asked about the business. The applicant said that he had bought and sold a car at a time. He had worked from home and he had no employees. The applicant said that if he sold a car he made about Rs1,500,000 net profit. In a good month he bought and sold two cars. Some months he sold none.

…

41    … The Tribunal noted his work history and asked if he had considered going back to work for a Company instead of running his used car business. The applicant said that he had. He said that in Indonesia it was difficult to get a position. He said that his age (he would have been 38 at the time) counted against him. He said that he had applied for work but had not been successful.

…

44    The Tribunal noted that the applicant’s claimed financial position appeared to mean that he would be in no position to open a new business. The applicant would have to find alternative work. The Tribunal asked if he would be targeted while doing this work. The applicant said that he would be considered old and he would find it difficult to get employment in Indonesia.

45    The applicant said that he wanted to get protection here so that he could be safe, work and support his family in Indonesia.

46    The Tribunal asked the applicant if he could move to another part of Indonesia and be safe from the harm that he feared from the gang. The applicant said that he could not afford to start a new business anywhere in the country. He said that he would have no money and he would not be able to find work. The Tribunal asked if he could work to accumulate money to establish a business. The applicant repeated that he could not find work and that he was afraid of being harmed by the gangs. He said that Indonesia was a violent place. The Tribunal asked why the applicant feared the gang that it had extorted money from him. He had been gone for more than 10 years. The applicant said that they would be angry that he had not paid them the money that wanted. He said it was impossible for him to return to Indonesia.

10    The RRT’s specific findings included the following:

49    The Tribunal accepts, as consistent with the country information, that there is criminal activity in Indonesia including extortion. The Tribunal accepts that the applicant was a victim of extortion. The Tribunal accepts that on one occasion the applicant was threatened and beaten. The Tribunal accepts that while the applicant was not physically harmed during this incident to the extent that he needed medical treatment he was traumatised by it.

50    The Tribunal does not accept that the applicant was targeted for extortion for any reason other than because he was perceived to have money. The applicant has not claimed that his ethnicity was a contributing factor in the extortion.

51    The Tribunal does not accept that the extortion was the reason that the applicant’s business deteriorated. The Tribunal notes that the applicant claimed that the reason he was beaten was that he had no money coming into the business because he was not selling cars. The Tribunal accepts that the business did not fail because he was paying the extortion demands. It failed because the applicant was not selling cars. The Tribunal therefore does [not] accept the conduct of the gang members amounts to significant harm as defined in … s.36(2A): (paragraph 6 above).

…

53    The Tribunal accepts that the applicant has not worked in Australia for some time. It accepts that if he returns to Indonesia he will have to find work to support his family. The applicant accepts that if he were to accumulate sufficient capital it would be open to him to again open a business. The Tribunal accepts, given the country information; that this may result in the applicant again having to pay extortion money if he were to decide to go into business. The Tribunal accepts that the extortion will occur for criminal motives. It does not accept that such extortion would amount to significant harm.

54    The Tribunal, on the basis of the evidence before it, is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Indonesia, there is a real risk that he will suffer significant harm in the terms set out in paragraph 6 above because he was the subject of extortion in Indonesia more than 10 years ago.

11    The RRT also rejected claims made during the course of the hearing that the appellant would be harmed because he was ethnic Chinese.

12    Another claim made during the hearing was that the appellant was apprehensive that he would be harmed because he was Catholic. This also was rejected by the RRT.

13    Apart from dealing with the claims individually, the RRT also considered them cumulatively. It concluded:

71    The Tribunal has considered the extortion claim, the ethnicity claim and the religion claim cumulatively. In addition it has considered the applicant’s claim that he will be poor and unable to find a job because of his age if he were to return to Indonesia. The Tribunal does not accept the applicant will be denied employment (and therefore accommodation) because he is poor or because of his age. Those factors may make it difficult for someone in his position to be recruited but the applicant also does have many years of work experience. In any event the applicant is 49 years old notwithstanding his age; he is not physically unable to work.

72    The Tribunal is satisfied, on the basis of the evidence before it, and having considered his claims individually and cumulatively, that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to the receiving country, Indonesia, there is a real risk that he will suffer significant harm.

14    All of the findings to which I have referred were findings made about questions of fact and dealt with the merits of the appellant’s claim for a protection visa on complementary protection grounds. There is no indication that the RRT misunderstood or failed to apply the relevant provisions of the Migration Act. There is no reason to think that the RRT failed to consider any aspect of the appellant’s claims which was relevant to consider.

15    I agree with the FCCA that the appellant’s challenge to the decision of the RRT does not raise any jurisdictional issue for consideration.

16    The FCCA was correct, with respect, to dismiss the application for judicial review to it.

17    The appeal to this Court from the judgment of the FCCA must be dismissed. It is appropriate to dismiss it with costs.

Associate:

Dated:    2 December 2015